People v Fakoya

[*1] People v Fakoya 2009 NY Slip Op 51976(U) [25 Misc 3d 1205(A)] Decided on September 1, 2009 Supreme Court, Kings County Ingram, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 1, 2009
Supreme Court, Kings County

The People of the State of New York,

against

Timoteu Fakoya, Enny Akinde, and Kayode Adegoke, Defendants.



9418/2008



The People were represented by Steven Kramer, John Nolan, John Morelli

Timoteu Fakoya was represented by Howard Jacobs

Enny Akinde was represented by Joshua Korode

Kayode Adegoke was represented by Adam Heyman

John G. Ingram, J.

Defendants are charged with 60 counts on various charges, including: Committing a Scheme to Defraud in the First Degree, Grand Larceny in the Second and Third Degrees, Identity Theft in the First Degree, Falsifying Business Records in the First Degree, Criminal Possession of a Forged Instrument in the Second Degree, Criminal Possession of Stolen Property in the Fourth and Fifth Degrees, and Unlawful Possession of Identification Information in the Third Degree.

The Defendants have jointly filed a motion to suppress all evidence seized from Apartment 8S at 675 Lincoln Street on September 16, 2008, arguing that the search of said apartment was unlawful. On June 15 and 16, 2009, and July 30, 2009, this Court held combined Dunaway, Mapp, and Huntley hearing. Based on the evidence adduced at the hearing, legal arguments of counsel, written memoranda of law submitted by counsel, and applicable law, the suppression motion with regards to the property seized from 675 Lincoln Avenue, Apartment 8S on September 16, 2008 is granted in its entirety.

Findings of Fact

People's Case

The People presented two witnesses, former United States Secret Service Agent Gregory Sheridan ("Sheridan") and New York City Police Officer Marc Whirl ("Whirl"). Defendants Enny Akinde and Timoteu Fakoya testified in their own behalf.

Sheridan had been an agent with the United States Secret Service for approximately six years prior to becoming a trainee agent for the Bureau of Alcohol, Tobacco and Firearms. On the evening of September 16, 2008, Agent Sheridan went to the N.Y.P.D. 75th Precinct and informed [*2]the officers there that he had reason to believe that the subject of a federal arrest warrant, one Emmanuel Adewale, was at 675 Lincoln Avenue, Apartment 8S. Agent Sheridan testified that this belief was based on: 1) various police database searches performed on the days leading up to the 16th, 2) an undated tenant handbook for Adeola Adewale (Emmanuel's brother) which listed Emmanuel Adewale as an emergency contact, and 3) previous interviews with building staff who saw Emmanuel Adewale enter and leave the apartment three times a week.

Accompanied by seven or eight members of the 75th Precinct's anti-crime unit, Sheridan and his partner, Agent Nathan Peachy, drove to 675 Lincoln Avenue, entered the building and approached Apartment 8S. Drawing his weapon and keeping it behind his right leg, Sheridan knocked on the door repeatedly until Defendant Timoteu Fakoya answered the door, opening it about five to six inches. Sheridan testified that he informed Defendant Fakoya that he was with the police, that they believed a fugitive was in the apartment and asked for permission to search the apartment for said fugitive. Sheridan further testified that after this conversation, Defendant Fakoya closed the door and about a second later re-opened the door entirely and made a "welcoming gesture" by sweeping one arm back. Sheridan interpreted this as permission to enter the apartment to search for the fugitive. No verbal consent is claimed.

Once inside the apartment, Sheridan turned right and entered the bedroom to determine whether Emmanuel Adewale was in there. After a cursory search, Sheridan exited the bedroom into the living room area, where Defendant Fakoya and three other African American individuals (two male, one female) were sitting around a coffee table. Sheridan then testified that while proceeding to question Defendant Fakoya regarding the whereabouts of Emanuel Adewale, he noticed an Asian male's photo driver's license on the coffee table. Picking the license up, Sheridan questioned Defendant Fakoya, as well as the others around the table, as to where the license came from. After not receiving any satisfactory answers, Sheridan then noticed that there was a Ziploc baggie containing approximately 20-30 cell phone SIM cards. Once again, Sheridan testified that he then questioned all those around the table and the only explanation he received was from Defendant Fakoya, who said that he had a lot of phones. Finally, Sheridan stated that he noticed a bank statement with the name "Joe Brenson" on it, which he determined was not the name of any of the people found at the residence. According to Sheridan, he did not receive a satisfactory answer regarding why this document was in the apartment.

Sheridan testified that he received permission to keep searching for further documents after he located each suspicious document. This continued searching lead him and the other officers to discover hundreds, maybe even thousands of various personal records, photos, social security cards, and two computers, one of which was apparently in the middle of a "LexisNexis" type search. Sheridan testified that after continually finding these new documents, he concluded that he had probable cause to arrest the defendants, and after consulting by telephone with the Assistant U.S. Attorney for the Eastern District on duty, allowed the N.Y.P.D. to place the defendants under arrest.

Police Officer Marc Whirl ("Whirl") has been employed by the New York City Police Department for four and a half years. Whirl stated that he assisted in placing the Defendants under arrest on September 17, 2008. Whirl obtained pedigree information from Defendant Adegoke back at the station house. Defendant Kayode told Whirl that his name was Adegoke Kayode and that he lived at 675 Lincoln Avenue, apartment 8S in Brooklyn.

[*3]The Defense Case

Defendant Akinde testified on her own behalf. She testified that on September 16, 2008 at approximately 11:30 p.m. she was at 675 Lincoln Avenue, apartment 8M in Brooklyn with Defendant Fakoya and Defendant Adegoke. She heard loud knocking on the door. Defendant Fakoya went to open the door, but could only open it partially due to the chain on the door. Defendant Akinde testified that she saw the nozzle of a gun pointed at Defendant Fakoya and somebody yelling "open the F'ing door". Defendant Fakoya attempted to close the door, but before he could fully close the door, the door was forced open and eight officers rushed in and ordered everyone in the apartment to get on the floor. Two officers walked around the apartment and the remaining officers ordered the Defendants to sit on the couch. One officer came over to Defendant Akinde and showed her a picture of a man and asked her if she knew that individual. She testified that she did not recognize the individual in the picture. The officers began to search the apartment. She stated that she never gave anyone permission to search the apartment.

Defendant Fakoya also testified on his own behalf. Defendant Fakoya testified that he lived at 675 Lincoln Avenue, Apartment 8S in Brooklyn in September of 2008. He rented the apartment from Adeola Adewale. On September 16, 2008 at 10:45 p.m. he was in his apartment with Defendant Adegoke, Defendant Akinde and Francois Shodiya. They were playing a video game. Defendant Fakoya said he heard a knock on the door. He walked to the door and asked who was at the door. Nobody responded and he opened the door, the chain still attached, and saw a gun pointed at him. Defendant Fakoya testified that someone stated "open up the F door. It's the police. Open up the F door. We have a warrant for the apartment. Open up the F door." Defendant Fakoya observed Detective Sheridan at the door, along with approximately five police officers. Defendant Fakoya stated that when he tried to shut the door, the door pushed open, the chain broke and he was knocked to the ground. The officers ordered everyone to the ground and some officers searched the apartment. The officers then ordered everyone to sit on the couch. He was shown a photograph of an individual. However, he did not recognize said person.

Conclusions of Law

The main issue before the Court is whether the search of 675 Lincoln Avenue, Apartment 8S on September 16, 2008 was lawful. The People contend that the search was lawful based on Defendant Fakoya's initial consent to search the apartment, which then led Agent Sheridan to view objects in plain view, the continued search of which was further consented to by Defendant Fakoya. Defendants argue that no one consented to the entrance or search of the apartment, and therefore, the search was unlawful.

It is firmly established that, absent consent or exigent circumstances, law enforcement officials may not search a third party residence for the subject of an arrest warrant without first obtaining a search warrant. Steagald v. United States, 451 U.S. 204 (1981); see also, People v. Jimenez, 163 Misc 2d 30 (Crim. Ct. Bronx 1994) (holding that absconder warrant insufficient to enter third-party residence); see also, People v. Atkinson, 116 Misc 2d 711 (Sup. Ct. Onandaga Co. 1982). Without a search warrant, an officer may only permissibly enter the dwelling of a third party in order to execute an arrest warrant either with the consent of an authorized party or under exigent circumstances. People v. Rodriquez, 19 Misc 3d 302 (Crim. Ct. New York 2008). Furthermore, in Payton v. New York, 445 U.S. 573, 603 (1993), the Supreme Court held that "an [*4]arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." (Emphasis added). New York Criminal Procedure Law permits a police officer to enter "any premises in which he reasonably believes" the subject of an arrest warrant to be present, but does not allow the officer to enter the residence of a third party without a search warrant. C.P.L. § 120.80(4). While there is no specific formula for what constitutes proper information for forming the reasonable belief that a suspect is in a particular residence, it is generally held that such information must be the result of "basic inquiries," and should be of a relatively recent vintage. People v. Cabral, 147 Misc 2d 1000 (Sup. Ct. Kings Co. 1990) (holding that police cannot rely on information contained in arrest warrant that contains address based on information given by defendant six months earlier).

It is clear from the record that it was never established that Emmanuel Adewale lived at or was present at Apartment 8S on September 16, 2008. In fact, the only document on the record with regards to tenancy for the apartment establishes that Adewale's brother was the tenant of the apartment in question and that Emmanuel Adewale was listed only as an emergency contact/next of kin. As such, this apartment was a third party residence and law enforcement officials were required to get a search warrant, barring consent or exigent circumstances, before entering the premises to search for Emmanuel Adewale. In addition, it is clear from the testimony that neither the Secret Service Agents nor the police officers had a search warrant to enter the premises and search for Emmanuel Adewale. As such, the arrest warrant for Emmanuel Adewale was not a legal basis to enter the third party residence of Apartment 8S, without consent or exigent circumstances.

Furthermore, it appears that the information that the Secret Service based its belief that Emmanuel Adewale was in the apartment was stale and inconclusive and probably would not have been sufficient for entry under the laws of New York even if the residence searched had not been a third party residence. This information included: 1) a recent database search, which Sheridan conceded were often inaccurate, 2) a tenant handbook with no date on it which listed Emmanuel Adewale's brother as the tenant for the apartment, and 3) interviews with building staff, the timing of which could not be definitively established by Sheridan, but he conceded that the interviews were at least several months previous, and probably closer to October of 2007. In addition, Sheridan testified that this was one of two residences that the Secret Service believed Adewale to be at, which was narrowed down from a previous list of four places. When taken together, these facts all establish that neither the Secret Service nor the N.Y.P.D. had any solid basis for the reasonable belief that Emmanuel Adewale lived at 675 Lincoln Avenue or that he was in that location on the night of September 16, 2008.In light of the lack of a search warrant and lack of a reasonable belief that Emmanuel Adewale was in fact at the apartment, it is clear that the Secret Service and N.Y.P.D. had no legal basis for entering the apartment on the basis of the arrest warrant, absent consent or exigent circumstances.

The People contend that a search warrant was unnecessary because they had consent to enter the apartment. When the police claim to have consent to enter the premises, it is the People's burden to show that "consent was in fact voluntarily given, and not the result of duress or coercion, express or implied." Bumper v. North Carolina, 391 U.S. 543 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). There are a variety of factors that should be examined as [*5]a whole when determining the voluntariness of consent, including, 1) whether the consenter was in police custody at the time (also including such considerations as number of officers present and the extent to which they restrained the defendant), 2) the background of the consenter, including prior experiences with the police, 3) whether or not the consenter offered any resistance to the police, and 4) whether the police informed the consenter of their right to refuse consent. People v. Gonzalez, 39 NY2d 122, 128-130 (1976). None of these factors is individually controlling; rather consent must be determined from the totality of the circumstances. Id. at 128. Furthermore, such consent need not be specifically or orally given, but may "be inferred from an individual's words, gestures, or conduct." United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).

Between the testimony of Sheridan and Defendants Fakoya and Akinde, there is a serious question with regards to the voluntariness of Defendant Fakoya's consent. However, under the totality of the circumstances, it appears that Defendant Fakoya's consent was not voluntary.

Defendant Fakoya testified that he opened the door approximately three to four inches, due to the chain on the door, and observed Sheridan pointing a gun at him. He also observed approximately five police officers standing in the hallway. According to Defendant Fakoya, Sheridan ordered him to open the door and that he had a warrant for the apartment. Defendant Fakoya testified that he tried to close the door and the door was forced open.Defendant Akinde testified similarly that Defedant Fakoya went to open the door, opened it approximately three inches and she observed a nozzle of a gun and an officer ordering Defendant Fakoya to open the door. Defendant Akinde testified that when Defendant Fakoya went to shut the door, it was forced open. Sheridan testified that he knocked on the door and Defendant Fakoya opened the door approximately five inches. Sheridan explained who they were and that they were looking for a fugitive. Defendant Fakoya closed the door, reopened it and made a gesture with a hand that would almost universally be considered a gesture of welcome, and offered no resistance to the officers as they entered the premises. People v. Davis, 120 AD2d 606 (2d Dept. 1986) (stepping aside at doorway considered implied consent to enter premises). Sheridan could not recall where the rest of the officers were standing or whether they had their weapons drawn.

There are several factors which indicate that Defendant Fakoya's consent to search was not voluntary. First, while Defendant Fakoya was not technically in custody, he was confronted at close to midnight by seven or eight New York City Police Officers and two Secret Service Agents, claiming to believe that a fugitive was present in the apartment. Such an obvious show of police force is not conducive to any sort of voluntary consent. Second, the fact that Sheridan had his weapon drawn at the time of the conversation —though he testified that he had it behind his right leg— is another factor that negates voluntary consent. In addition, Sheridan was not aware as to whether any of the other officers had their weapons drawn, nor did the People call any of the seven or eight officers that were at the scene to testify whether their weapons were drawn. Defendant Fakoya and Akinde testified that a number of the police officers possessed weapons. Furthermore, Sheridan could not recall whether he told the Defendants that he possessed an arrest warrant. Finally, Defendant Fakoya was never informed of his right to refuse consent, nor was he even given a written consent which Sheridan admitted having access to.

These factors are compounded by the seemingly incomplete testimony of Sheridan, who could not testify with any specificity where the other officers were located when they were outside the [*6]apartment and whether they had their weapons drawn, which makes it almost impossible to get a general picture of what the Defendant was confronted with when he was asked for permission to enter the apartment. In light of these deficiencies in the People's case, the Court finds that the People have not met their burden to show that Defendant's consent was in fact voluntary, and therefore the police had no legal basis for their entry into the apartment. As such, all the evidence seized as the result of the subsequent search should be suppressed as the fruits of an illegal search. Nardone v. United States, 308 U.S. 338 (1939), People v. Balian, 49 AD2d 94 (4th Dept. 1975).

Assuming arguendo that the Defendant did give voluntary consent to enter the apartment, such consent does not give the police the right to search everywhere and question whomever they please. People v. Flores, 181 AD2d 570, 571 (1st Dept. 1992); People v. Love, 273 AD2d 842 (4th Dept. 2000). The standard for determining the scope of consent and whether the police exceeded the scope of the offered consent is one of objective reasonableness and what would a typical reasonable person have understood the consented search to entail. People v. Gomez, 5 NY3d 416 (2005) (permission to search car did not reasonably include permission to pry open the gas tank).

Sheridan testified that he had not looked under the bed, or in the closet, logical places for a person to hide. Thus it might reasonably be argued that Sheridan's search, up until the point of his second conversation with Defendant Fakoya, was cursory, and that therefore he did not exceed the scope of his consent to search when he proceeded to ask what might be defined as "routine" follow up questions of the Defendants. On the other hand, despite the cursory nature of the search, Sheridan testified that as he exited the bedroom and observed the four people sitting in the living room area, he had determined that none of the people located in the apartment were Emmanuel Adewale, and that he must not have been in the apartment. It was after he made this determination that Sheridan proceeded to question Defendant Fakoya as to Adewale's whereabouts. By his own admission, Sheridan's questions were not directed at furthering a search within the apartment, but rather were meant as routine follow-up questions to see if the Defendants knew where Emmanuel Adewale might be found.

Taking all of this into consideration, it does not seem unreasonable that if someone granted voluntary consent to search for a fugitive that they might be subject to routine follow-up questions such as whether they knew the fugitive or his current whereabouts. Therefore, assuming arguendo that consent was given, Sheridan did not exceed the scope of such consent by proceeding over to the Defendants to ask them follow-up questions. However, it is obvious that the alleged consent given was only to look for the subject of a warrant, and that a reasonable person would not understand this permission to include the ability to go looking through items located in the house to find potential contraband. As such, Sheridan did exceed the scope of the alleged original consent when he picked up the Asian male's drivers license and proceeded to question the defendants regarding where it came from. Since Sheridan had at this point exceeded the scope of his consent and had no search warrant for the apartment, his seizure of the driver's license was unlawful, and all evidence seized as a result of this unlawful search should be suppressed.

The People contend that Sheridan did not exceed the scope of his consent, since the items seized were all found in plain sight, and therefore, fall under the "plain view" exception to the search [*7]warrant requirement. However, even assuming arguendo that the Police had voluntary consent to enter the apartment and that Sheridan had not exceeded the scope of that consent when he picked up the drivers license, the search is still invalid since the seizure in question does not fulfill all the requirements for the "plain view" exception to the search warrant requirement.

In order for a seizure to fall into this exception, three requirements must be satisfied. First, the official making the seizure needs to legally be in the place where they observe the contraband. People v. Jackson, 41 NY2d 146 (1976). Second, the discovery must be inadvertent: the officer cannot anticipate that he will discover the contraband in the location that he discovers it in. Coolidge v. New Hampshire, 403 U.S. 443 (1971); People v. Conton, 271 AD2d 694 (2d Dept. 2000). Finally it must be immediately apparent to the officer that the items to be seized are contraband or the evidence of a crime. People v. Redmond, 41 AD3d 514 (2d Dept. 2007). This final requirement especially applies to documents, which cannot be seized unless their outward appearance is such that a police officer would immediately know they are the evidence of a crime. People v. Etoll, 51 NY2d 840 (1980); People v. Haas, 55 AD2d 683 (2d Dept. 1976). Furthermore, if the incriminating nature of the item in question is only evident after further investigation, then the item cannot be seized under the "plain view" doctrine. Arizona v. Hicks, 480 U.S. 321 (1987); People v. Rivas, 214 AD2d 996 (4th Dept 1995).

Even though the testimony seems to show that Sheridan's observations of the driver's license and the other items was inadvertent, the search fails to meet the other two requirements of the "plain view" exception. As was discussed at length earlier, the police had no legal right to be at the apartment since the arrest warrant was not a valid means of entering the apartment and the People failed to prove that the police entered the apartment on voluntary consent. As such, the seizure fails on the grounds that the police had no legal right to be in the location where they observed the alleged contraband, and the items discovered as the result of that seizure should be suppressed.

However, even assuming arguendo that the police did have the legal right to be in the apartment, the seizure still fails on "plain view" grounds since the driver's license was not immediately recognizable as contraband or the evidence of a crime. Sheridan testified that he saw an Asian male's driver's license among a group of four African Americans, which aroused his suspicions. He further testified that he did not know immediately that the license might be evidence of a crime until after he picked it up and started questioning the occupants and determined that none of them could offer a satisfactory answer as to where the license came from. Sheridan plainly admitted that he did not know that the license was possibly evidence of a crime until after he questioned the Defendants. Since the driver's license was not immediately recognizable as contraband and Sheridan needed to further question the Defendants before his suspicions were confirmed, the seizure of the driver's license was not subject to the "plain view" exception to the search warrant requirement, and should therefore be suppressed. As such, the other items found as a result of this initial search should be suppressed as well as "fruit of the poisonous tree." Nardone, 308 U.S. 338 (1939); People v. Balian, 49 AD2d 94 (4th Dept. 1975).

Sheridan's testimony that he received additional permission after looking at the driver's license to look for other suspicious items, and repeatedly received consent after finding subsequent items is irrelevant for several reasons. First, the additional consent is irrelevant since it came as the [*8]indirect result of the police's illegal entry into the apartment and the initial illegal seizure of the driver's license, which makes the additional items seized the products of an illegal search. Second, and perhaps more importantly, the People have once again failed to prove that this consent was given willingly.

While there are several factors that might lead one to believe that this consent was voluntary—including the defendant's previous experience with the police and the fact that he was still not in custody—the facts of the situation tend to point away from there being voluntary consent even more so than with the initial alleged consent to enter the apartment. Gonzales, supra at 128-130. Defendant Fakoya was surrounded by two Secret Service Agents and five police officers when they apparently began seeing items lying around in plain sight. In addition, the Defendant was never informed of right to refuse consent, or even given the standard written consent form that Sheridan carried in his car. Id. at 130. Finally, as with the initial entry, the testimony of Sheridan failed to clarify the situation with regards to possible coercive techniques, as he could not specify whether the officers had their revolvers out at the time, and where everyone was located within the apartment when the alleged consent was obtained. However, Defendants Fakoya and Akinde testified that several officers were inside the apartment with their guns drawn.In light of the large police presence in the apartment, the lack of informed consent and the gaps in the People's witness' testimony, the Court finds the People have not met their+- burden to show that the additional consent was in fact voluntary. As such, all evidence seized as the result of this unlawful search, including the statements, should be suppressed.

Based on the forgoing, the Court grants the Defendants' motion to suppress all evidence seized at 675 Lincoln Avenue, Apartment 8S on September 16, 2008, in its entirety.

This opinion constitutes the Decision and Order of the Court.

Dated:September 1, 2009

Brooklyn, New York

__________________________________________

HON. JOHN G. INGRAM

Justice of the Supreme Court